Civil Penalty Immigration Case Study:
How we helped an independent restaurant defeat a £30,000 Home Office fine
“We’re a small, hard-working family-run restaurant, and we refused to have our business’s name tarnished unfairly. Thanks to the team at DavidsonMorris, we can move on with our name cleared and without the crippling financial hit of a civil penalty fine.” Pushvinder Dale, Mogul Restaurant, Greenwich
When Mogul first approached us for an initial assessment, they were understandably frustrated and upset. They were being accused by the Home Office of employing workers illegally and were facing a fine for tens of thousands of pounds.
It was clear to us straight away that this was a classic example of the Home Office targeting smaller businesses in the hope they will simply ‘pay up’.
Fortunately, Mogul sought help and we were able to instantly identify issues that we could use to successfully contest the allegations and defeat the civil penalty.
Background
Mogul Indian in Greenwich, London, is a family-owned restaurant that has been trading for over 20 years. The restaurant is situated on a busy high street, and currently employs 10 individuals.
The business had had no previous issues with the Home Office, nor any history of immigration non-compliance.
It came as a considerable shock to Mogul’s owner, Pushvinder Dale, when Home Office officials attended the restaurant unannounced and with no prior warning to carry out an immigration inspection. To make matters worse, the inspection took place on a Friday evening in the run up Christmas – meaning the restaurant had to close during one of its busiest times.
What did the Home Office allege?
After attending the restaurant, the Home Office made two false allegations:
1. The Home Office alleged that the business had not conducted correct Right to Work checks for one employee. The employee purported to be an EU citizen and had presented EU identity documentation to gain employment at Mogul. The Home Office identified during the inspection that the ID document provided by the individual was counterfeit, and they were not in fact an EU citizen. A fine was imposed on Mogul for £15,000 for illegally employing the individual.
2. The Home Office alleged that the business had not conducted any Right to Work checks for another individual. The Home Office alleged that an individual present at the restaurant during the inspection was in fact a delivery driver and as such an employee. With no record of any Right to Work checks on the individual, a fine of £15,000 was issued for illegally employing the individual.
In total, Mogul Indian was facing a civil penalty for illegal employment of £30,000.
How we successfully challenged the civil penalty
Mogul approached DavidsonMorris for a fixed-fee case assessment. This assessment determined that Mogul had sufficient grounds to fight against the civil penalty.
We were able to identify a number of grounds for challenge:
1. A civil penalty should not have been issued as evidence of the required right to work checks on the illegal employee were provided at the site visit. Mogul had conducted pre-employment checks on all employees and had presented the documentary evidence to the Home Office to support this.
2. The Home Office officials acted in a racist and discriminatory manner at the inspection. This included unlawfully arresting an employee, privately interviewing one employee who had made clear their English language proficiency was poor.
3. The Home Office alleged with no evidence that a suspected delivery driver present at the premises was an employee. Because the individual was not on the payroll and since no evidence could be provided that they were an employee, this had to be accepted.
We also discovered through our own investigations that the Home Office representatives had entered the premises on a warrant issued under The Licensing Act (relating to the provision of alcohol by food establishments), when the real purpose of the visit was to detain illegal immigrants.
On the basis of these arguments and our supporting evidence, we lodged the appeal to the Home Office on behalf of Mogul.
Civil penalty cancelled
Upon receipt of the appeal, the Home Office made an instant offer before the appeal was even acknowledged by the Court. The Home Office offered to cancel the £30,000 civil penalty in full and made an offer to pay 60% of Mogul’s legal costs.
Pushvinder Dale of Mogul Indian Greenwich said:
“After the initial shock of the inspection and being issued with the fine, we decided to take legal advice on our options.
“DavidsonMorris were amazing from the start and saw straight away the reasons to complain. We could have just paid the fine, but I’m so pleased and relieved we pushed back and didn’t just accept what the Home Office was alleging and how they went about the inspection.”
Civil Penalty Immigration: Advice for Small Business Owners
It’s unclear why the Home Office sought out Mogul, but this is a common tactic for immigration enforcement and for small business owners, it should serve as a warning that the Home Office can and does turn up on your doorstep at any time.
The levels of fines that can be issued are eye-watering. In many cases we have seen, the fine has had the potential to seriously impact the ability of a business to continue trading. The Home Office can fine up to £20,000 per illegal worker, and criminal sanctions may also follow.
So it’s imperative business owners get their immigration compliance in order:
- Carrying out the prescribed right to work checks is essential in establishing a ‘statutory excuse’ for a cancelled or reduced civil penalty.
- Responding to the Home Office’s request for further information and other deadlines is also essential in establishing a statutory excuse and getting the penalty cancelled or reduced.
- Keeping a record of the conduct of the officials present at any site inspection is also important as evidence of unlawful or discriminatory behaviour tends to make the Home Office cancel penalties because they do not want to go to Court and confront these claims.
At DavidsonMorris, we have a team of specialising in civil penalties for illegal working.
We have extensive experience in advising business owners and employers on challenging fines for illegal employment, identifying areas for complaint and defence including the evidential basis for alleged breaches, whether the Home Office has followed the prescribed process and whether the conduct of Home Office officials during inspections meets the required standards.
Are you facing a civil penalty for illegal immigration? Take action!
If you have received a civil penalty, timing will be crucial since you only have a limited window in which to respond to the Home Office.
We can provide a fixed-fee assessment at the preliminary penalty stage enabling you to determine quickly how best to proceed and which course of action will result in minimal financial loss for your business.
If you are facing a civil penalty from the Home Office, contact us for advice on your case.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals